ZiGen Wong v NZAT Construction Limited [2026] NZERA 193

This decision is an "employment relationship problem" case about (1) whether the applicant was an employee at all, (2) wage arrears for months of unpaid work, and (3) constructive dismissal caused by sustained non-payment. The respondent denied employing the applicant and did not participate in the investigation. The full determination is embedded at the end of this page.

Background and work arrangement

Mr Wong said he contacted a person associated with NZAT Construction (referred to in the determination as "Mr Liew") looking for labouring work. He started labouring on a construction site with agreed hours and an agreed hourly rate. There was no written employment agreement and no payroll documentation.

The Authority recorded that Mr Wong was told he would be needed from 7am to 5pm, Monday to Friday, and that he and "Mr Liew" agreed on an hourly rate of $25. Initially his hours were recorded on weekly timesheets, but that stopped and he continued working the same pattern.

Cash payments and irregular pay

The arrangement was entirely in cash. Mr Wong did not have a work visa entitling him to work in New Zealand, did not have an IRD number, and no tax was deducted. He said he was paid for early work but payments became irregular and sporadic.

Mr Wong said he was not paid at all for 17 weeks between 8 January 2024 and 5 May 2024, but kept working because of sporadic payments and assurances that he would be paid in full. Over March and April 2024 he repeatedly pressed for payment but was not paid. On 5 May 2024 he was told the site had reduced staff and he should "take a break for now". He stopped attending the site.

Later, in July 2024, Mr Wong again complained about non-payment. The person he dealt with accepted there were outstanding wages and offered $2,000 in cash, with a message encouraging him to "buy your ticket home" and saying the rest would be paid "bit by bit later". Mr Wong received the $2,000 cash payment but did not receive further payments.

Was Mr Wong an employee?

The respondent emailed the Authority denying it employed Mr Wong and saying it did not know him. It did not file a statement in reply, did not attend case management, and did not attend the investigation meeting.

The Authority determined employee status under s 6 of the Employment Relations Act 2000, which requires an assessment of the real nature of the relationship. With no written contract, the Authority applied the Supreme Court approach in Bryson v Three Foot Six Limited, including: the control test, the integration test, and the fundamental/economic reality test.

On Mr Wong's evidence, the Authority found the indicia of employment were strong: regular hours, labouring work performed under direction at the site, integration into the work site (including access PIN and safety card), and no evidence he was operating a business on his own account. He did not work for other companies during the period.

The Authority also made clear that a lack of immigration status and tax compliance did not prevent a finding of employment status under s 6. The Authority does not determine immigration or taxation compliance.

Wage arrears and holiday pay calculation

The Authority found Mr Wong was employed from 26 September 2023 to 5 May 2024 on the agreed terms: $25 per hour for 9.5 hours per day, five days per week, which it calculated as $1,187.50 gross per week.

Accepting Mr Wong's evidence (and noting the respondent provided no wage/time records), the Authority found he was unpaid for 17 weeks. That produced gross wage arrears of $20,187.50. The Authority deducted the $2,000 cash payment and ordered wage arrears of $18,187.50.

The Authority also found Mr Wong did not receive holiday pay and added 8% ($1,455.00) to account for annual leave entitlements. It noted all figures were gross and that each party had obligations to Inland Revenue.

Note: The determination contains a naming inconsistency in the arrears paragraphs (referring to "Mr Liew" being owed wage arrears). In context, those findings and orders plainly relate to Mr Wong as the claimant.

Constructive dismissal

The Authority applied the constructive dismissal test: a fundamental breach by the employer causing the employee to resign (or otherwise end the relationship), where the breach is sufficiently serious to be repudiatory and the employee's ending of the relationship is a reasonably foreseeable result.

Sustained failure to pay wages on time or at all can meet that threshold. The Authority found the prolonged non-payment, combined with the message that Mr Wong was no longer needed on site, amounted to an unjustified constructive dismissal. The dismissal was not justified.

Remedies

Lost wages after dismissal

Mr Wong sought lost wages following the termination of employment. The Authority declined lost wages. It found that, while immigration status does not prevent employee status, Mr Wong could not lawfully work after the employment ended and did not mitigate his losses by seeking a work visa. On that basis, he was not entitled to a lost-wages award.

Compensation

The Authority accepted Mr Wong experienced emotional impact from the unjustified dismissal and the surrounding circumstances. On the evidence, it assessed the impact as lower-end compared with other cases and fixed compensation at $8,000.

Costs and filing fee

The starting point for costs was the Authority's daily tariff of $4,500. Given the short investigation meeting and limited documents, the Authority reduced costs to $3,500. The filing fee of $71.55 was also awarded.

Orders

Practical takeaways

• Employee status is about reality: even without a written agreement, regular directed work for pay can still be employment under s 6.
• Non-payment is high risk: sustained failure to pay wages can found both arrears orders and a constructive dismissal finding.
• Respondent non-participation usually hurts the respondent: without wage/time records and evidence, the Authority may accept the applicant's account.
• Mitigation can limit remedies: lost-wage claims can fail if the employee cannot lawfully work and does not take steps to resolve that problem.

Read the full ERA determination (embedded)

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.